Psycho Sensei

It's really too bad that nobody enforces sanctions on groups that overstep their bounds in attempting to prevent Americans from exercising fair use rights. It certainly would curtail these types of over broad ridiculous claims.

Info/Law on Super Bowl Sunday:

There is a Super Bowl tie-in to everything from fighting poverty and hunger to accelerating the downward spiral of Kevin Federline’s career. Here at Info/Law we don’t even have to stretch for our connection.

This week the NFL cracked down on churches holding Super Bowl viewing parties because, the league said, such “mass out-of-home viewing” violates copyright and trademark law. Slate’s “Explainer” provides a decent plain-English explanation of the NFL’s view of the law here.

This sounds a lot like the short-sightedness of other zealous IP claims made by entertainment businesses (like this and this, to take just a couple of recent examples from a rich history). Arguably, it is even more bone-headed for at least three reasons. Here is why:

1. The “homestyle exception” under section 110(5)(A) allows the churches to show the game on equipment “of a kind commonly used in private homes” (provided they don’t charge admission — some of them were planning to do so, which is a separate issue). The NFL is telling churches (and newspapers are printing as true) a clear rule that screens cannot be bigger than 55 inches. This is simply wrong. The 55-inch limit the NFL is citing to the churches as, ahem, gospel, is from a different section of the law (section 110(5)(B)) dealing principally with TVs in businesses such as restaurants and bars. The assertion that the bright-line 55-inch rule from subsection “B” transfers to the general “commonly used in private homes” standard under subsection “A” is wishful thinking. Have you been to Circuit City lately? Let’s just say that screens a lot bigger than 55 inches sell quite briskly to private homeowners, and “homestyle” screens will continue to grow in the near future. If you can watch the game on a 70-inch plasma at Uncle Charley’s, you can do it at Fall Creek Baptist Church too.


2. The league’s claim that the NFL’s licensed trademark in “SUPER BOWL” prevents a church from announcing its “Super Bowl viewing party” is also ridiculous. Trademark fair use is murky, but not that murky. When you want to refer to a company, a place, or an event, and the only realistic way to do it is by using a trademark, you are in the clear — especially where, as here, there is no danger of any relevant confusion by customers. (Some courts have adopted a doctrine of “nominative fair use” to deal specifically with such situations, but even a court that has not adopted the doctrine would allow uses that are purely “nominative” — that is, using the trademark only to refer to the trademarked thing.


3. As a former Capitol Hill staffer, I predict that the very next day Congress is in session, at least one legislator will introduce a bill exempting churches from liability in homestyle-like settings. There is already a special exemption for “performance of a nondramatic literary or musical work … or display of a work, in the course of services at a place of worship or other religious assembly.” (That’s section 110(3).) Maybe copyright-holders will prevent enactment of such a bill — although there is a pretty strong lobby on the other side of this one. Either way, by picking on such a sympathetic supposed infringer, the NFL is just begging for Congress to reopen the whole issue of “mass out-of-home viewing” and sports, and to do so ill-disposed to the league.

I am dismayed (but not surprised) to see the news media report this story and include only the NFL’s self-serving legal interpretation.  In fact, as long as churches don’t charge admission and don’t use a screen bigger than one that might be found in a neighboring McMansion, then these gatherings are probably legal.  I hope plenty of churches ignore the NFL’s bluster and go ahead with their plans.